Justice Samuel Alito's draft majority opinion overturning the Supreme Court's abortion precedents touches on drug legalization in a way that raises interesting issues regarding the government's authority to forbid the consumption of certain intoxicants. "Attempts to justify abortion through appeals to a broader right to autonomy and to define one's 'concept of existence' prove too much," Alito writes. "Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. None of these rights has any claim to being deeply rooted in history."
I am not so sure about that. It is true that courts have not been receptive to the argument that drug prohibition inherently violates fundamental rights. But if the test for whether a right is "deeply rooted in history" hinges largely on whether Americans were long accustomed to exercising it without government interference, the freedom to consume intoxicants seems like a more plausible candidate than the right to abortion. If Alito delved into the history of drug legislation, he would discover a long tradition of pharmacological freedom. And even if that record does not impress him, he should recognize that the federal government's authority to ban drugs is based on the sort of implausible, ahistorical constitutional interpretation that he condemns in the context of abortion.
Litigants "have made the argument that there is a fundamental right to use drugs," Northern Kentucky University law professor Alex Kreit told Marijuana Moment, but that claim stands little chance "outside of the context of medical uses." While "taking privacy/autonomy rights seriously could get you there," Ohio State University law professor Douglas Berman said, "such arguments have never gotten any traction in courts." He noted one partial exception: In 1975, the Alaska Supreme Court held that possessing small amounts of marijuana at home for personal use was protected by the state constitution's privacy clause.
Are courts right to dismiss the idea that the freedom to control what goes into your body is "deeply rooted in history"? The weight that Alito attaches to early abortion legislation suggests that claim is not as ridiculous as he thinks.
Alito starts with the premise that unenumerated rights protected by the 14th Amendment must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." Given the long history of criminalizing abortion in the United States, he argues, it is clear that the right to abortion does not fall into that category. But if we take the same approach to drug prohibition, the historical analysis looks different.
In 1851, Maine became the first state to ban the production and sale of alcoholic beverages. By 1855, a dozen states had enacted similar laws. But "of the 13 states that had prohibition in 1855, only 5 remained dry in 1863," Paul Aaron and David Musto note in Alcohol and Public Policy: Beyond the Shadow of Prohibition.
"In many states," Richard Mendelson writes in From Demon to Darling: A Legal History of Wine in America, "the provisions were only minimally enforced, and public opinion evaporated as quickly as it formed. In the years leading up to the Civil War, the Maine Laws were amended or dismantled one by one. Some state laws, like Wisconsin's, were vetoed by the governor following passage by the legislature. Others were rejected at the polls by voters, as occurred in Illinois."
Alito cites "the unbroken tradition of prohibiting abortion on pain of criminal punishment," which he says "persisted from the earliest days of the common law until 1973." When the 14th Amendment was ratified in 1868, by contrast, alcohol prohibition was a recent experiment that was generally deemed a failure.
Did that experiment comport with the Founders' ideas about the proper role of government? "Was the government to prescribe to us our medicine and diet, our bodies would be in such keeping as our souls are now," Thomas Jefferson observed in Notes on the State of Virginia. While Jefferson, a wine connoisseur, was talking about freedom of religion, the comment suggests that he thought the very notion of such regulation was absurd.
Arguing against that sentiment in 1856, Henry Clubb, secretary of the Maine Law Statistical Society, defended the historical pedigree of his state's policy. "PROHIBITION has been recognized as a principle of law ever since laws have been known to exist," he wrote. "The very first law recorded is prohibitory, and it relates to human aliment."
Clubb was talking about God's command to Adam and Eve regarding "the tree of the knowledge of good and evil," whose fruits they were forbidden to eat. He conveniently overlooked the Bible's many positive references to wine and "strong drink."
More recent history likewise seemed inconsistent with Clubb's argument that alcohol prohibition was blessed by tradition. "The colonists brought with them from Europe a high regard for alcoholic beverages," Aaron and Musto note. "Distilled and fermented liquors were considered important and invigorating foods, whose restorative powers were a natural blessing. People in all regions and of all classes drank heavily."
That does not mean Americans were oblivious to the hazards of drinking. "Drunkenness was condemned and punished, but only as an abuse of a God-given gift," Aaron and Musto say. "Drink itself was not looked upon as culpable, any more than food deserved blame for the sin of gluttony."
That view would eventually be rejected by the temperance movement, which initially focused on moderation through moral suasion but ultimately settled on abstinence enforced by law. Dry activists came to view alcohol as inherently addictive, which meant that social pressure and self-control were inadequate responses to the problems caused by excessive drinking.
In addition to widespread protests, evasion, and enforcement difficulties, the Maine Laws faced legal challenges. "In 1856," Mendelson notes, "the New York Court of Appeals overturned that state's prohibitory law because it called for the forfeiture of liquors owned and lawfully possessed at the time the law was passed, thereby violating the state's constitutional guarantees that no person shall be deprived of property without due process of law and that private property shall not be taken for public use without just compensation. Indiana's version of the Maine Law was invalidated as an invasion of the right to private property because the state's supreme court found that the temperate use of alcoholic beverages—particularly beer, which was at issue in that case—was not harmful and the intemperate use is 'not the fault of the manufacturer or seller.'"
On the whole, then, the experience with the Maine Laws did not establish the sort of precedent that Alito thinks dooms any claim that abortion rights are "deeply rooted in history." And even as states experimented with alcohol prohibition, Americans were still free to buy and consume drugs such as opium, cocaine, and marijuana, which were common ingredients in patent medicines during the 19th century. "For the first 100 years of the nation, the right to use drugs was taken for granted," observes Dale Gieringer, who directs the California chapter of the National Organization for the Reform of Marijuana Laws, in an email commenting on Alito's opinion.
That situation remained essentially unchanged until Congress passed the Harrison Narcotics Tax Act in 1914. Twenty-three years later, Congress approved the Marihuana Tax Act, which effectively banned cannabis at the national level. By that point, every state had already banned marijuana, beginning with California and Maine, which prohibited its use without a prescription in 1913.
National drug prohibition raised a new issue: Where did Congress get the authority to ban intoxicants, especially insofar as it criminalized intrastate conduct? Even Federal Bureau of Narcotics Commissioner Harry Anslinger, who encouraged states to ban marijuana, conceded that a national ban could not be justified based on the federal government's power to regulate interstate commerce.
"There are no Federal laws on the growth or use of marijuana, the plant being grown so easily that there is almost no interstate commerce in it," the Associated Press reported in 1931. According to the A.P., Anslinger "said the government under the Constitution cannot dictate what may be grown within individual States."
The solution to that problem was to frame prohibition as a revenue measure, the approach that Congress took with both the Harrison Narcotics Tax Act and the Marihuana Tax Act. National alcohol prohibition, by contrast, was authorized by the 18th Amendment. And unlike our current drug laws, it did not criminalize possession or consumption.
After the Supreme Court reinterpreted the Commerce Clause to accommodate pretty much anything Congress wanted to do, it became a license for national drug prohibition, which somehow no longer required invoking the taxing power or amending the Constitution. When Congress passed the Controlled Substances Act in 1970, for instance, it noted that "a major portion of the traffic in controlled substances flows through interstate and foreign commerce." It added that "local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances."
That logic culminated in Gonzales v. Raich, the 2005 case in which the Supreme Court said the power to regulate interstate commerce extended far enough to cover government-authorized medical marijuana that never crossed state lines or even left the grower's property. "If Congress can regulate this under the Commerce Clause," Justice Clarence Thomas observed in his dissent, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."
Based on the original understanding of the 14th Amendment, Alito says, it is clear that the Constitution does not protect a right to abortion. But the same sort of analysis tells us that the power to regulate interstate commerce does not authorize Congress to "dictate what may be grown within individual States," let alone criminalize mere possession of psychoactive substances that legislators do not like.